Opinion
Civil Action No. 04-2301.
February 15, 2005
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Romanus Miles ("Miles"), an individual currently incarcerated in the Graterford State Correctional Institution. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY:
The relevant facts, set forth by the Pennsylvania Superior Court, are as follows:
Over the course of approximately two [2] months beginning in July 1992, Miles and one [1] or more accomplices that he recruited committed eight (8) armed robberies at different Irish bars located in Northeast Philadelphia. The robberies occurred at or around midnight. At each robbery, Miles armed himself with a sixteen [16] gauge sawed-off shotgun. Miles conducted the robberies as follows. Miles would fire a shot into the air as he ordered the customers of the bar to the floor, using the same obscenities at each robbery. Miles would jump over the bar counter, and remove money from the cash register, the bar counter, and, if the bar had one, the "Irish Daughters" contribution jar . . .
Because of the common occurrence of these robberies, Officer Tyrone Randall set up surveillance near Pat's Café, an Irish bar . . . on September 1, 1992. On that date, Officer Randall observed a man walk towards Pat's Café, look inside the bar for several minutes, and then walk out of sight. The man (later identified as Miles) returned with another man. Both stood in front of the bar, talking, and looking "like they were going into the bar.". . . When the men did not go into the bar, Officer Randall and Officer Christopher Lewis approached them. Miles attempted to flee after the officers tried to question him. Officer Lewis pursued Miles. Prior to his apprehension, Miles fired his sawed-off shotgun at Officer Lewis, but did not hit the officer. Officer Lewis subsequently arrested Miles.Commonwealth v. Miles, No. 604 EDA 2002, at 1-2 (Pa.Super. Feb. 11, 2003) (unpublished memorandum), attached to Resp't Answer as Ex. "C."
On July 12, 1993, a jury sitting before the Honorable C. Darnell Jones, Court of Common Pleas of Philadelphia County, found Miles guilty of five (5) counts of robbery, seven (7) counts of aggravated assault, four (4) counts of conspiracy, and six (6) counts of carrying a firearm on public streets. On December 14, 1993, Judge Jones heard argument on Miles' post-trial motions and arrested judgment on four (4) of the aggravated assault charges. The court then sentenced Miles to an aggregate term of 25 to 50 years of imprisonment.
Miles filed a direct appeal in the Pennsylvania Superior Court claiming:
(1) the unavailability of portions of the notes of testimony of the suppression hearing and the jury voir dire prevented him from filing an adequate appellate brief;
(2) defense counsel was ineffective for failing to move to sever;
(3) the court erred in failing to suppress the out-of-court and in-court identifications;
(4) there was insufficient evidence to sustain his conviction of aggravated assault on Philip Brady; and
(5) the prosecutor committed misconduct when, in closing argument, she said that the fingerprint identification technician would not falsely identify a latent fingerprint as that of Miles because he might thereby lose his pension.
On March 5, 1996, the Superior Court affirmed the judgment of sentence. Commonwealth v. Miles, 678 A.2d 831 (Pa.Super. 1996); No. 267 PHL 94 (Pa.Super. March 5, 1996) (unpublished opinion), attached to Resp't Answer as Ex. "A." On May 1, 1996, the Superior Court denied a subsequent petition for re-argument. Miles filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on October 4, 1996.Commonwealth v. Miles, 685 A.2d 544 (Pa. 1996).
On November 27, 1996, Miles filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. On April 22, 1999, counsel appointed to represent Miles in his PCRA matter subsequently filed an amended PCRA petition and supporting brief. Thereafter, Miles petitioned the court to proceed pro se. The PCRA granted Miles' petition after conducting a full colloquy of Miles regarding his decision. On July 21, 1999, Miles filed a pro se amended petition and supporting memorandum of law. On October 17, 2001, the PCRA court dismissed Miles' PCRA petition.
Miles filed an appeal in the Pennsylvania Superior Court claiming:
(1) ineffective assistance of trial counsel for failing to:
(a) object to the joinder of numerous cases in one trial;
(b) request a mistrial or curative instructions after the trial court sustained an objection to the prosecutor's remarks during closing argument;
(c) object to the jurors' use of the Commonwealth's trial notes or written transcripts during deliberations;
(d) impeach Commonwealth witnesses' testimony with prior inconsistent statements;
(e) request a Brady charge regarding prior inconsistent statements made by the Commonwealth witnesses; and
(f) object to the trial court's jury instructions which erroneously relieved the Commonwealth of its burden of proving Miles' guilt beyond a reasonable doubt;
(2) ineffective assistance of appellate counsel for failing to preserve the above-stated issues; and
(3) PCRA court error for dismissing Miles' PCRA petition in the absence of an evidentiary hearing.
The Superior Court affirmed the denial of PCRA relief on February 11, 2003. Commonwealth v. Miles, No. 604 EDA 2002 (Pa.Super. Feb. 11, 2003) (unpublished memorandum). On April 26, 2004, the Pennsylvania Supreme Court denied Miles' petition for allowance of appeal. Commonwealth v. Miles, 183 E.D. Allocatur Docket 2003.
On May 21, 2004, Miles filed the instant petition for writ of habeas corpus claiming:
(1) trial counsel was ineffective for failing to object to the consolidation of the multiple robberies he committed;
(2) trial counsel was ineffective for failing to request a mistrial or curative instructions after the trial judge sustained an objection to a comment by the prosecutor;
(3) trial counsel was ineffective for failing to challenge the jury's use of a chart which a prosecutor filled out during the course of the trial;
(4) there was insufficient evidence to sustain his conviction of aggravated assault on Philip Brady;
(5) the court erred in failing to suppress the out-of-court and in-court identifications; and
(6) all prior counsel were ineffective for failing to present the above-stated claims at trial or on appeal and for failing to seek reconsideration of his sentence.
Respondents have filed an answer arguing that Miles is not entitled to habeas corpus relief because his claims are meritless.
DISCUSSION :
I. Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). Since Miles filed his habeas petition on May 21, 2004, I am required to apply the amended standards set forth in the AEDPA to his claims for federal habeas corpus relief.Id. (citing Lindh v. Murphy, 521 U.S. 320, 336 (1997)) (presuming that a federal habeas court is to apply the amended standards set forth in the AEDPA when a petition is filed after the effective date of the AEDPA).
The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. Werts at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams, 529 U.S. at 389-390). The Court inWilliams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Hameen, 212 F.3d at 235 (citing Williams, 529 U.S. at 388-389). "In further delineating the `unreasonable application of' component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 389).
1. Ineffective Assistance of Counsel for Failing to Object to the Consolidation of Cases in One Trial
In his first (1st) claim, Miles contends that trial counsel was ineffective for failing to object to the consolidation of eight (8) separate robbery cases for the purposes of one (1) trial. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). InStrickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:
Miles did not present this claim as one of ineffective assistance of counsel on his habeas petition, see Pet, at back of p. 8; however, he does allege that counsel was ineffective for failing to raise this claim in his supporting memorandum of law.See Pet'r Mem. of Law, at 11. As such, I will proceed to review the merits of this properly exhausted claim. In support thereof, I note that although the state courts declined to review this claim on direct review, the Superior Court adjudicated the merits of this ineffective assistance of counsel claim on collateral review.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687.
Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Strickland, 466 U.S. at 689. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id.
"It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. at 391. Thus, Miles is entitled to relief if the Pennsylvania courts' decision rejecting his claims of ineffective assistance of counsel was either "contrary to, or involved an unreasonable application of," that established law. Id.
As previously noted, Miles contends that trial counsel was ineffective for failing to object to the consolidation of his robbery cases into a single jury trial. In analyzing this claim, I must determine if such an objection would have had merit. Under Pennsylvania Rule of Criminal Procedure 582(A)(1), offenses charged in separate informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction. Notwithstanding, a court may order separate trial of offenses "if it appears that any party may be prejudiced by offenses . . . being tried together." Pa.R.Crim.P. 583. Said prejudice "[i]s not simply prejudice in the sense that [petitioner] will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule [583] speaks is rather that which would occur if the evidence tended to convict [petitioner] only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence." Commonwealth v. Boyle, 733 A.2d 633, 637 (Pa.Super. 1999) (quoting Commonwealth v. Lark, 543 A.2d 491, 499 (Pa. 1988)).
Rule 582 of the Pennsylvania Rules of Criminal Procedure was previously codified as Rule 1127.
Rule 583 of the Pennsylvania Rules of Criminal Procedure was previously codified as Rule 1128.
Pursuant to these rules, the Pennsylvania Supreme Court has enunciated a three(3-) part test for use in analyzing whether a court should order a separate trial for multiple offenses. The court must determine:
(1) whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative; (3) whether the defendant will be unduly prejudiced by the consolidation of offenses.Boyle, 733 A.2d at 635 (citing Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997), cert. denied, 525 U.S. 1015 (1998).
In reviewing this claim, the state court followed this three-(3-) part test and first determined that "the evidence of each separate offense would have been admissible at separate trials for each offense to establish a common scheme, plan and design, and the identity of Miles as one of the perpetrators."Commonwealth v. Miles, No. 604 EDA 2002, at 10 (Pa.Super. Feb. 11, 2003) (unpublished memorandum). In support thereof, the court stated:
Initially, we note that the robberies occurred at or after midnight in Irish bars in the same area of Philadelphia within a seven-(7-) week period. Miles, the leader in the robberies, recruited his accomplice(s). The record also reflects the similarities of the robberies . . . At each robbery, Miles distributed the .38 caliber handgun that was used in the commission of the crimes, along with his sixteen (16) gauge sawed-off shotgun, to his accomplice(s). Miles always fired his sawed-off shotgun into the air as he ordered the patrons and personnel to the ground, using the same expletive in each of the robberies. In addition, one of his accomplices would usually fire the handgun. Miles robbed the bars by jumping over the bar counter and removing money from the cash register, the bar countertop and the "Irish Daughters" contribution jar, if one was present. We note that the police recovered both weapons, which the customers and personnel of the seven [7] bars identified as the weapons used in the robberies.
Because the robberies so relate to each other that proof of one tends to prove the others, and are so logically connected that proof of one will naturally show that Miles committed the others, we conclude that the evidence of each of the robberies would be admissible in a separate trial for the others.
Furthermore, we discern no abuse of discretion by the trial court in consolidating the charges that arose from the robberies with the charges that arose from Miles firing at the pursuing officer while attempting to flee from him. The Commonwealth presented evidence that the police set up surveillance of an Irish bar in the area where the seven (7) robberies had occurred. The police observed Miles and another man outside the Irish bar. When the police approached them, Miles fled. While fleeing, Miles fired his sawedoff shotgun, the same one that he used in the seven [7] robberies, at the pursuing officer. Under these circumstances, we conclude that the evidence of the robberies was relevant to the charges arising from the shooting and fleeing from the police, as such evidence demonstrated Miles's motive for shooting at the officer and was part of the history of the case.Commonwealth v. Miles, No. 604 EDA 2002, at 10-11 (Pa.Super. Feb. 11, 2003) (unpublished memorandum).
As outlined by the state court, the fact that there were vast similarities between each of the eight (8) robberies directs the conclusion that these events established a common scheme, plan or design. Therefore, as the state court found, the evidence of each of the offenses would be admissible in a separate trial for the other. See Boyle, 733 A.2d at 636 (the general rule prohibiting the admission of prior crimes nevertheless allows evidence of other crimes to be introduced to prove a common scheme, plan or design embracing the commission of two (2) or more crimes so related to each other that proof of one tends to prove the others).
Miles argues, however, that consolidation of the charges against him created a unnecessarily complex trial which confused the jury and rendered them incapable of separating the evidence of each crime. See Pet'r Mem. of Law, at 12. It is true that consolidation of the robberies at issue created a lengthy trial during which "the Commonwealth presented the evidence of each crime through the testimony of approximately sixty (60) witnesses." Commonwealth v. Miles, No. 604 EDA 2002, at 13. However, the state court also noted that "[t]he characters in each event were different and the crimes formed a chain of events of distinguishable acts." Id. In doing so, the Commonwealth presented different witnesses to support each distinct event. In light thereof, the Pennsylvania courts properly concluded that there was no likelihood that the jury was confused by similarities in the robberies and that judicial economy was best served by consolidation of the charges. See Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997) ("[w]here a trial concerns distinct criminal offenses that are distinguishable in time, space, and the characters involved, a jury is capable of separating the evidence").
Miles also argues that the jury's confusion is illustrated by the fact that he was convicted for robbing Reale's bar, a robbery allegedly committed by two (2) people, after two (2) people had pled guilty to committing the robbery prior to his trial. See Pet'r Mem. of Law, at 15-19. In dismissing this argument, the state court pointed out that the Commonwealth presented evidence that three (3) people had participated in the robbery, with Miles representing the third robber. Commonwealth v. Miles, No. 604 EDA 2002, at 12-13.
Lastly, Miles claims that consolidation of the charges prejudiced him because the jury could not avoid cumulating the evidence against him. See Pet'r Mem. of Law, at 21. In dismissing this argument, the state court noted that the jury had asked numerous questions and requested evidence during deliberations. Rather than concluding that the jury's questions were a manifestation of undue confusion, however, the court noted the lengthy duration of the trial and concluded that "[t]he questions submitted by the jurors merely reflect their careful deliberation of each of the crimes charged." Commonwealth v. Miles, No. 604 EDA 2002, at 14. This conclusion is supported by the information requested by the jurors. For instance, the jury requested "the chart listing the bars, et cetera, the map, the Father's Day photos of Mr. Senior, the folders of the photo spreads for . . . Miles and Senior, composites of both defendants," and photos of the relevant bars. (N.T. 7/7/93, 84; 7/8/93, 12). The jury foreperson also requested information regarding the witnesses' identifications of Miles and Senior and the timing thereof, the time of the robberies at Gallagher's bar and McKee's bar, the location of the bar where a fingerprint was found, and the definitions of aggravated assault and conspiracy. (N.T. 7/7/93, 85-106, 7/8/93, 3-28; 7/9/83, 3-5). These specific question and requests for information reveal a jury conscientiously endeavoring to deliberate upon each separate charge and reflects a considered studied of the evidence. As such, I find that the state court properly concluded that the jurors were capable of defining each separate robbery and that Miles was not prejudiced by the consolidation of charges against him.
Although Miles also argues that he was not given proper written notice of consolidation in violation of Pennsylvania Rule of Criminal Procedure 583(b), see Pet'r Mem. of Law, at 12, he fails to explain how this argument relates to his claim that counsel was ineffective for failing move for severance of the charges against him. Consequently, this aspect of his claim must be dismissed. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991) (bald assertions and conclusory allegations do not provide sufficient ground for habeas relief, a petitioner must set forth facts to support his contention of a federal constitutional violation).
In light of the foregoing, and upon review of the state court conclusion that the consolidation of charges was permissible under state law, I find that counsel did not render constitutionally ineffective assistance by failing to object to the joinder of the offenses. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (counsel cannot be deemed ineffective for failing to pursue a meritless argument). Accordingly, this claim must be denied.
2. Ineffective Assistance of Counsel for Failing to Request a Mistrial or Curative Instructions
In his second (2nd) claim, Miles contends that trial counsel was ineffective for failing to request a mistrial or curative instructions after the trial court sustained an objection to the summation of the prosecutor. Although Miles is not directly claiming prosecutorial misconduct, the court views the standards for a prosecutorial misconduct claim as helpful in establishing the parameters of reasonableness for a prosecutor's comments and whether any objections to those comments would have been sustained. Lawrie v. Snyder, 9 F.Supp.2d 428, 443 (D. Del. 1998). In evaluating whether the remarks of the prosecutor rise to the level of a constitutional violation, a federal habeas court is required to examine those remarks in the context of the whole trial. Werts, 228 F.3d at 198 (citing Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992) and Greer v. Miller, 483 U.S. 756, 766 (1987)). The remarks must be sufficiently prejudicial in the context of the entire trial to violate a petitioner's due process rights. Id. (citing Greer, 483 U.S. at 766 and Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974)).
The state courts found a variation of this claim waived on direct appeal; however, on collateral appeal, the Superior Court determined that Miles had properly presented this claim as one of ineffective assistance of counsel.
In explaining the background to this claim, the state court stated:
[T]he Commonwealth's fingerprint expert, Eugene Famiglietti, opined that the latent print found on a shell casing recovered from one [1] of the targeted bars matched one [1] of Miles's fingerprints. On direct examination of the expert, the Commonwealth introduced a copy of a fingerprint chart, which evinced a match, showing the points of comparison between the print lifted and Miles's left little finger. N.T., 7/1/93, at 51-52. Defense counsel attacked the expert's testimony twice during the trial. First, on cross-examination of the expert, defense counsel addressed the expert's failure to produce the original chart, and insinuated that the expert substituted the copy to conceal the fact that no match existed. N.T., 7/1/93, at 56-59. Second, defense counsel revisited his attack of the expert's testimony in his closing argument. N.T., 7/6/93, at 104-05.Commonwealth v. Miles, No. 604 EDA 2002, at 16. During the prosecutor's summation, Miles alleges that the prosecutor vouched for the veracity of the fingerprint expert by stating "[i]gnore a man whose got over 20 years experience looking at fingerprints for defense and for the Commonwealth, ignore all that." (N.T. 7/6/93, 118). The prosecutor went on to question whether Mr. Famiglietti would be willing "to lose his pension all over Mr. Miles." Id. Miles claims that "the prosecutor's direct expression of a personal opinion as to the veracity of the Commonwealth's expert witness had an unavoidable effect [of] creating a fixed bias in the minds of the jurors." See Pet'r Mem. of Law, at 24-25.
Specifically, the prosecutor stated the following:
[PROSECUTION]: In a few of these bars, the seven [7] gunshot shells that were left behind were telling marks as to method and identification. This one, he left his little fingerprint, but ignore that, ladies and gentlemen. After all, he didn't have big slides to look at. Ignore a man whose got over 20 years experience looking at fingerprints for defense and for the Commonwealth, ignore all that. He is going to lose his pension all over Mr. Miles.
[DEFENSE COUNSEL]: Objected to, Your Honor.
THE COURT: Sustained.
(N.T. 7/6/93, 118).
In rejecting the Miles' claim, the state court found that "the prosecutor's comment did not form a fixed bias and hostility toward Miles in the minds of the jury so as to prejudice him."Commonwealth v. Miles, No. 604 EDA 2002, at 16. In support thereof, the court noted that "the prosecutor was entitled to rebut the defense counsel's inference that the fingerprint expert had fabricated the fingerprint match." Id.
I find that, when viewed in proper context, the state court correctly determined that the prosecutor's statement did not violate Miles's due process rights and create "a fixed bias in the minds of the jurors." See Pet'r Mem. of Law, at 25. As the state court pointed out, the statements at issue were not an improper commentary regarding the prosecutor's personal opinion, but rather an argument made in "fair response" to defense counsel's attempt to cast doubt upon the integrity of Mr. Famiglietti's work.
Within the framework of this discussion, I find that the state court reasonably determined that the prosecutor's statements did not taint the jury's ability to reach a verdict objectively. Although trial counsel's objection was successful, the prosecutor's statements clearly fell within the bounds of proper advocacy. In light thereof, I conclude that trial counsel cannot be deemed ineffective for failing to request a mistrial or curative instruction. See Strickland, 466 U.S. at 687-89. Accordingly, I find that the state court's determination of this issue was neither contrary to, nor an unreasonable application of, Strickland. See 28 U.S.C. § 2254(d).
Miles argues that "there was no reasonable basis not to preserve the issue by requesting a mistrial or curative instructions" when the trial court had sustained trial counsel's objection to the disputed statements. See Pet'r Mem. of Law, at 25. I disagree. The state court found that the Commonwealth was justified in responding to defense counsel's credibility comments in her closing argument. Although the trial court sustained counsel's objection, as Respondents' point out, this ruling was a windfall to the defense. Because Miles cannot show that his counsel was ineffective for failing to obtain an even bigger windfall than he did, his argument must be dismissed.
3. Ineffective Assistance of Counsel for Failing to Challenge the Jury's Use of a Chart Compiled by the Prosecution
In his third (3rd) claim, Miles argues that trial counsel was ineffective for failing to challenge the jury's use, during deliberations, of a chart compiled by the prosecution. The Commonwealth used the chart at issue to pinpoint the eight (8) bars that were robbed, to identify the eyewitnesses to those robberies, and to clarify which co-conspirators allegedly participated in which robberies.
Specifically, Miles argues that submitting the chart to jurors during deliberations violated Pennsylvania Rule of Criminal Procedure 646 (Material Permitted in Possession of the Jury). Rule 646 provides that:
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (B).
(B) During deliberations, the jury shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession by the defendant;
(3) a copy of the information;
(4) written jury instructions.
I find that Miles has not established that trial court's decision to allow the jury to use the chart at issue was objectionable under state law and therefore, I find that trial counsel was not ineffective for failing to challenge the jury's use of the chart. See Sanders, 165 F.3d at 253. In denying this claim, the state court noted the "vast amount of testimony and the evidence introduced during the approximately three-(3-) week trial," and concluded that "the trial court properly admitted the chart into evidence as it could `assist the jury understanding the evidence.'" Commonwealth v. Miles, No. 604 EDA 2002, at 18. Moreover, the state court pointed out that the chart was properly admitted into evidence, and that the jury was not prohibited under state law from considering the chart during deliberations. Id.
Even assuming, however, that Miles had proven that trial counsel had rendered ineffective assistance, Miles' claim must fail because he cannot establish that he was prejudiced by any alleged ineffective assistance of counsel. As the state court pointed out: "any prejudice that Miles may have suffered as a result of the trial court permitting the chart into the deliberation room was cured by the trial court's cautionary instructions."Commonwealth v. Miles, No. 604 EDA 2002, at 18. The state court noted that the trial court twice issued cautionary instructions to the jury during the trial, admonishing the jury that chart's use was limited to clarifying the Commonwealth's theory of the case. At the beginning of the trial, the court stated:
I want to address the one exhibit . . . the diagram which contains the various bars, witnesses, and persons identified as being the participants in these alleged offenses.
That diagram or chart is there for one purpose and one purpose only. That is for the Commonwealth . . . to use it as a guide to listing the various locations, dates, times, places, and participants, witnesses, and the like, to assist you in keeping track of all the different people whose names will be mentioned and who will testify in this case.
Because the defense attorneys are not listing anyone on that board, it is simply a Commonwealth's guide, and it is therefore not to be considered as evidence, per se, of anyone's name being on that board, actually having done anything.
It is simply a guide for you to keep track of places, names, dates. In other words, you are not to give that diagram weight that someone is guilty because the name is on that board. It is just simply to keep track of all different locations. As I said before, the dates and times and places . . .
So therefore, you can't accept it as truthful for the weight of the evidence. Simply, as a guide and nothing more than that.
(N.T. 5/18/93, at 102-103). Later in the trial, the court repeated:
I want to reiterate . . . that the chart that is before you, the one listing the bars, the names of the various witnesses and the names of the defendants, are there for one purpose and one purpose only; that is to give you assistance and give you a guide to the various bars, the various dates on which these alleged crimes occurred and to help you keep track of the witnesses. It is not there to establish as an exhibit that either defendant committed any of the crimes or that either defendant was identified without any contest as to their identification, is the best way to put it.
Certainly, the defense contends that these identifications should be challenged and are challenged; therefore, again, the chart is simply there to help you keep track of which bars and which dates they are testifying about.
(N.T. 6/28/93, at 4). In light of the trial court's repeated reminders to the jury that the chart had limited value, I find that no evidence to support the argument that the jury was unable to restrict their consideration of the chart accordingly. Consequently, I conclude that Miles has not satisfied the prejudice prong of the Strickland test. Strickland, 466 U.S. at 695. As a result, this claim must be denied.
4. Sufficiency of the Evidence
Miles bases his fourth (4th) claim for habeas relief on the alleged insufficiency of the evidence supporting his conviction for the aggravated assault of Philip Brady. It has long been established that due process requires that a person can only be convicted of the crime with which he is charged by proof of every element of the criminal offense beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970); Davis v. United States, 160 U.S. 469, 488 (1895). In reviewing challenges to the sufficiency of the evidence, a court must determine "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan v. Cuyler, 723 F.2d 1077, 1083-84 (3d Cir. 1983) (quoting Jackson, 443 U.S. at 319) (emphasis in original). The task of resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts is reserved for the factfinder and as such, is beyond the scope of federal habeas sufficiency review. Jackson, 443 U.S. at 319.
The AEDPA has limited a habeas court's role in reviewing a claim that the evidence adduced at trial was insufficient to support a conviction. Under 28 U.S.C. § 2254(d)(1), a writ of habeas corpus may be issued for evidentiary insufficiency only if the state courts have unreasonably applied either the Jackson "no rational trier of fact standard," or the state equivalent of the Jackson standard. See Smith v. Vaughn, 1997 WL 338851, at *7 (E.D. Pa. June 17, 1997) (citing Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.), vacated and remanded on other grounds, 522 U.S. 801 (1997)) ( 28 U.S.C. § 2254(d)(1) requires deference to the state court's Jackson determination).
As previously noted, Miles was convicted of, inter alia, conspiracy to commit the aggravated assault of Philip Brady during the robbery of the Red Rooster Inn. Miles was aided in the robbery and aggravated assault by Adolphus Senior. Miles argues that the evidence is insufficient to support his conviction for aggravated assault because there was "no serious bodily injury, nor an attempt at the same in that Mr. Senior did not have the requisite specific intent to cause seriously [sic] bodily injury" to Philip Brady. See Pet., back of p. 9.
Brady testified that Senior hit him twice on the shoulder blade with a bat. (N.T. 6/28/93, 7).
In rejecting this claim, the state court first summarized relevant state law, noting that:
A person is guilty of aggravated assault if he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa. C.S. § 2702(a)(1). Moreover, "each conspirator is criminally responsible for the actions of his co-conspirator, provided it is accomplished in furtherance of the common design, even though one does not perform the immediate act complained of." Commonwealth v. Robinson, 351 Pa. Super. 309, 316, 505 A.2d 997, 1001 (1986).Commonwealth v. Miles, No. 267 PHL 94, at 6 (Pa.Super. March 5, 1996) (unpublished opinion); see Jackson, 443 U.S. at 324 n. 16 (in determining whether a person has been convicted of the crime for which he is charged by proof of every element, courts must explicitly reference the substantive elements of the criminal offense as defined by state law).
The Superior Court then made the following findings in applying the Pennsylvania equivalent to the Jackson standard:
[Miles] entered the Red Rooster Tavern with Adolphus Senior and two [2] other accomplices on August 21, 1992. [Miles], the leader of the group, had previously assigned Senior "to stop the music" during their robbery of the bar. While [Miles] was taking money from the cash register, Senior approached the disc jockey Philip Brady with a baseball bat, expressed displeasure with the kind of music being played, and subsequently smashed the music equipment with the bat. He then ordered Mr. Brady to the floor, and when Mr. Brady did not move fast enough to suit Senior, he struck him twice in the back with the bat. At a result of the attack, Mr. Brady suffered abrasions and welts on his back. As [Miles] was Mr. Senior's co-conspirator during these events, which is unconstested by [Miles], we find this evidence sufficient to support [Miles'] conviction for aggravated assault. (citations omitted).Commonwealth v. Miles, No. 267 PHL 94, at 6-7 (Pa.Super. March 5, 1996) (unpublished opinion).
Despite Miles' argument to the contrary, I find that the state courts' application of the Jackson standard was within the bounds of reasonableness. Indeed, I have no doubt that Mr. Senior's actions in hitting Mr. Brady twice with a baseball bat can, at the very least, be considered "reckless" behavior "manifesting extreme indifference to the value of human life," thereby satisfying the elements for aggravated assault. See 18 Pa. Cons. Stat. § 2702(a)(1). Moreover, Miles' role as co-conspirator in both the robbery and the attack on Mr. Brady which took place in furtherance of the conspiracy to commit that robbery makes him equally responsible for Mr. Senior's actions.
As a result, I conclude that the state court properly set forth the elements of the law and applied relevant trial evidence thereto in finding that the Commonwealth had presented sufficient evidence to establish that Miles was guilty conspiracy to commit aggravated assault. Because the state courts' finding on this issue is not contrary to United States Supreme Court precedent nor an unreasonable determination of the facts, 28 U.S.C. § 2254(d), Miles' claim must be denied. Smith, 1997 WL 338851, at *8 (applying the AEDPA and finding that "the state courts' application of the Jackson standard was within the bounds of reasonableness").
Even under the traditional Jackson analysis, this court finds that a "rational trier of fact" could have concluded beyond a reasonable doubt that the elements of aggravated assault had been met in Miles' case when co-conspirator Senior used a baseball bat to strike the victim. Sullivan, 723 F.2d at 1083-84 (quoting Jackson, 443 U.S. at 319).
5. Trial Court Error for Failing to Suppress Identifications
In his fifth (5th) argument, Miles claims that the trial court erred in failing to suppress all evidence resulting from an improper and suggestive photo array. See Pet'r Mem. of Law, at 39. The Supreme Court has recognized that "the confrontation compelled by the State between the accused and the victim or witness to a crime to elicit identification evidence is particularly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." United States v. Wade, 388 U.S. 218, 228 (1967). An accused is entitled to due process protection against the introduction of evidence of, or tainted by, unreliable pretrial identifications elicited through unnecessarily suggestive photographic displays. Moore v. Illinois, 434 U.S. 220, 227 n. 3 (1977) (citing Unites States v. Ash, 413 U.S. 300, 320 (1973)); see also Neil v. Biggers, 409 U.S. 188, 198 (1972) (suggestive confrontations are disapproved because they increase the risk that a conviction will be based on a misidentification). If there was a suggestive identification procedure, the question becomes whether the suggestiveness "created `a very substantial likelihood of misidentification.'" United States v. Dowling, 855 F.2d 114, 117 (3d Cir.), aff'd 493 U.S. 342 (1990) (citingUnited States v. Milhollan, 599 F.2d 518, 522-23 (3d Cir.)cert. denied, 444 U.S. 909 (1979) and quoting Neil, 409 U.S. at 198). This question is to be answered with reference to the "totality of the circumstances," with particular attention paid to such relevant factors as the quality of the witnesses' original opportunity to view the criminal, their degree of attention, their level of certainty when confronted with the suspect or his image, and the length of time between the crime and the confrontation. Id. (citing Neil, 409 U.S. at 199-200). "The defendant has the initial burden of demonstrating that the confrontation procedure was impermissibly suggestive."Reese v. Fulcomer, 946 F.2d 247, 259 (3d Cir. 1991). "Only if the defendant meets this initial burden will the court consider the admissibility of the identification under the `totality of the circumstances.'" Id.
Miles claims that the identification procedure was impermissibly suggestive because the general description of the perpetrator of the robberies had a "close cropped haircut," and he was the only individual in the photo array with such a haircut. See Pet'r Mem. of Law, at 42. However, he has not carried the initial burden of demonstrating that the photographic identification was impermissibly suggestive. See 28 U.S.C. § 2254(e)(1)) (factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence). Courts have found that photographic displays are not "unduly suggestive even when certain characteristics of the defendant or his photograph are set apart from others." Reese, 946 F.2d at 260 (rejecting petitioner's claim that his photograph was distinctive within a display of seven (7) photographs because only it depicted a man with long sideburns and a card revealing his name and height);Dowling, 855 F.2d at 117 (fact that defendant was only person in display of six (6) who wore a red tee-shirt was not suggestive when other men also wore colored tee-shirts and "were comparable in dress and appearance"); United States v. Maguire, 918 F.2d 254, 265 (1st Cir. 1990) (reviewing cases rejecting argument of impermissible subjectivity in photospreads because only the defendant was wearing an earring; or had beard and braids; or had dreadlocks and hair covering), cert. denied, 499 U.S. 950 (1991). Miles has not established that the length of hair on the top of his head was sufficient to distinguish him from the other photographs presented. As a result, this aspect of Miles' claim must be denied.
A hearing was held on Miles' motion to suppress identification testimony which spanned the course of several days. During final argument, Miles' counsel stated the following:
I'm sure your Honor will recall that the photo spread that was handed to each witness by the police was similar. However, the the [sic] Court, I hope, would know that my client was really the only one who had a close haircut. All of the rest had — the sides were close but that there was hair up top. In my client's picture his nose was different in that aspect. The picture that was shown was that of a person who had a very close-cut head. The hair was cut close to his head where the others weren't. I would suggest that that particular point may have caused the identification in that everybody who was looking for someone who had a very close cut head. The hair was cut very close to the head. Although they were all young African American males of a similar complexion, that particular feature did highlight my client. For that reason, I would ask the court to suppress all of the photo ID's.
(N.T. 6/16/93, at 18-19). The suppression court dismissed this argument, concluding that, aside from two (2) robbery victims whose identification testimony was suppressed on grounds unrelated to the photographic array, the identifications of Miles were "constitutionally sound." (N.T. 6/16/93, at 34).
In any event, in rejecting this claim, the state court stated:
[A]ssuming, arguendo, that the pre-trial identifications were tainted, the record reveals that the in-court identifications were independently reliable by clear and convincing evidence because of the amount of time witnesses had to observe an undisguised [Miles], the accuracy of their descriptions of [Miles] at various lineups and photograph identifications, and the good lighting at the bars. (Citation omitted). Therefore, we find no merit to [Miles'] claim.Commonwealth v. Miles, No. 267 PHL 94, at 5 (Pa.Super. March 5, 1996). I find no error in the Superior Court's conclusion that the Commonwealth's case against Miles depended upon solid and persuasive identification evidence grounded upon various witnesses' observations of the robbers during the commission of the crime. Under the totality of the circumstances, the reliability of the in-court identifications greatly outweighs any possible suggestiveness of the pretrial identification procedures. Reese, 946 F.2d at 263; see Simmons v. United States, 390 U.S. 377, 384 (1968) (convictions based on eyewitness identification at trial following pretrial identification will be set aside on the ground of prejudice only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification). Accordingly, this claim must be denied.
Although Miles also argues that his pretrial identification should have been suppressed because his counsel was not present during the identification process, see Pet'r Mem. of Law, at 39-40, he failed to present this aspect of his claim to the state courts. See Pet'r Sup. Ct. Br., at 20-37 (May 31, 1995). Because there is no available state remedy for Miles to present this claim to the state courts, this aspect of his claim is considered unexhausted, O'Sullivan v. Boerckel, 526 U.S. 838 (1999), and, absent a showing of cause and prejudice, procedurally defaulted. See 28 U.S.C. § 2254(b);Coleman v. Thompson, 501 U.S. 722, 731 (1991).
6. Ineffective Assistance of All Prior Counsel
In his last claim, Miles argues that all counsel were ineffective for failing to adequately raise the aforementioned claims "before, during, and after" trial. See Pet'r Mem. of Law, at 46. To the extent that the underlying claims have been determined to be meritless, supra, this claim must be dismissed.
With regard to appellate counsel's failure to present the claims on direct appeal, in order to satisfy the first prong of the Strickland test, Miles is required to show that appellate counsel's failure to properly present the abovementioned arguments fell outside "the wide range of reasonable professional assistance; that is, [he would have to] overcome the presumption that, under the circumstances, the challenged action `might be considered sound [appellate] strategy.'" Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999) (citing Strickland, 466 U.S. at 689). "One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise." Id.; see Smith v. Murray, 477 U.S. 527, 536 (1986) (stating that the "process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of appellate advocacy") (quoting Jones v. Barnes, 463 U.S. 745, 751-752 (1983)).
In this case, in light of the fact that the underlying claims have no merit, I believe that it was reasonable for appellate counsel to conclude that it was unlikely that he could satisfyStrickland's prejudice test on these claims and that it was therefore strategically unwise to select these arguments on direct appeal. Consequently, this court concludes that Miles's appellate counsel did not render constitutionally ineffective assistance in failing to raise the claims he presents in the instant habeas petition. Accordingly, this claim must be denied.
Miles also argues that trial and appellate counsel "failed to preserve and present a motion for reconsideration of sentence and challenge the discretionary aspect" of his sentence. See Pet'r Mem. of Law, at 47. However, Miles did not fairly present this claim to the state courts. See Pet'r Traverse, at 14-15 (acknowledging that the basis for this claim is a general, blanket claim of ineffective assistance of appellate counsel presented to the state court). As a result, the claim is unexhausted, O'Sullivan, 526 U.S. 838, and, absent a showing of cause and prejudice, the claim is deemed procedurally defaulted.See 28 U.S.C. § 2254(b); Coleman, 501 U.S. at 731. In any event, Miles fails to explain the grounds upon which counsel should have requested reconsideration or provide any argument in support thereof. See Pet'r Mem. of Law, at 47-48. Consequently, such a claim must be dismissed. Zettlemoyer, 923 F.2d at 298.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of February, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 200, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections filed thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.